Joint Committee on the Draft Disability Discrimination Bill Minutes of Evidence


Examination of Witnesses (Questions 580 - 599)

TUESDAY 30 MARCH 2004

MS ROWENA DAW, MR LEE SMITH, MR GERALD JONES, DR JED BOARDMAN AND MR PAUL FARMER

  Q580  Chairman: Are you arguing that the particular problems which are faced by people with mental health problems are different from the problems faced by other disabled people because we have had much the same evidence from other groups of disabled people of the problems with employers?

  Ms Daw: Certainly we accept that other groups of disabled people face discrimination, absolutely, we know that. I think the difficulty we find—and we are making this argument because of the evidence from our cases, overwhelming piles of cases and examples that come to us at our legal unit—is that people who face discrimination fall at the first hurdle if they have mental health problems. They never get through the door. Remembering that the definition of discrimination is the gateway, it is not necessarily going to mean that people will succeed but it is the gateway.

  Q581  Lord Rix: Rowena, going back to your original statement, it is your understanding that the law makers, the draftsmen who drafted the original definition in the DDA, thought that mental illness would be covered and, if you do not believe that to be so, should we not be looking on it as a new inclusion in our deliberations?

  Ms Daw: In some senses, I think it was felt that it would be adequately covered; in other senses, I think it was not understood the extent to which the way it was drafted would cause problems. I think we are looking at three or four different aspects of the definition. "Clinically well recognised" was brought into the definition because they thought that it was necessary to screen out mild eccentricities etc. That has proved not to be so but, in other respects, I think the normal day-to-day activities which is much more restrictive than in the American legislation, on which of course this legislation was modelled, has had the unintentional effect of making it very difficult for people with mental health problems because they have to twist their evidence to such an extent as the only thing that is relevant is inability to concentrate. So, I guess it is an answer with different aspects.

  Q582  Mr Berry: In Mind's submission, you say that the requirement that mental illness be clinically well recognised, to use the phrase in the DDA, is patently discriminatory and I understand the basis of that argument. You then go on to say that that definition causes particular problems because there are disagreements between medical practitioners and I wonder if you could say a little about why this happens and what problems that causes.

  Ms Daw: Our main problem is that it is an extra legal hurdle and there are many cases where there is not a particular issue, but we know that medical practitioners disagree quite fundamentally at times, particularly early on, particularly at first onset of an illness where it is not absolutely clear what progress or what form the illness will take and, in the case of mental ill health, it is often the case that the person has only had access to a GP. GPs are not trained in great depth on issues of mental ill health and therefore they might give a very general description of what the problem could be. If I could illustrate it perhaps by a recent case that I think has caused enormous problems for us, the case of Morgan Staffordshire University. In that case, the tribunal were extremely sympathetic to the particular person who had serious depression over a period of 12 months. They accepted that it lasted for 12 months and they accepted that it had a substantially adverse effect on normal day-to-day activities. In other words, the essence of the definition was satisfied. However, because the medical notes had not been able to locate precisely where this fitted in the international classification of diseases, they were not able to say that it was clinically well recognised. So, they found themselves in this bizarre situation which is unique to mental ill health of being unable to find it satisfied because they could not find where it was. Obviously, there can be disagreements between practitioners in any area, physical illness as well, but I think our problem in relation to mental health is that you have that right at the beginning. In other physical impairments, you will have that, as you do with mental health as well, in terms of whether it is substantial or not, but, in physical cases, for instance, at the moment, you do not have to prove that you have a diagnosis, that there is a physical diagnosis at all.

  Q583  Mr Berry: If the requirement that a mental illness is clinically well recognised were to be removed from legislation, do you see any problems arising from that?

  Mr Farmer: I do not think so, no. I think one of the key issues here is that the diagnosis sometimes acts as a false security for employers who feel as though they may or may not be covered by the nature of the diagnosis. We are not saying here that diagnosis on its own is irrelevant but that, at the moment, it is acting as an unnecessary and an additional hurdle, so we would see it as being something that would be taken into consideration. At the moment, we cannot really see any real problems that would be created if this clinically well-recognised requirement were taken away.

  Dr Boardman: Just to also reinforce, we are not arguing that diagnosis is irrelevant in these cases, rather that what is key is the sort of functioning of the person and the impairment and disability associated with that. The second thing I think we must remember is that we are often concerned with lack of clear-cut cases or clear-cut diagnoses. They do arise and are likely to arise within the physical medicine as opposed to the psychiatric components of medicine.

  Q584  Chairman: If they are less clear cut and they are hard perhaps to recognise, how would somebody know that they were discriminating against that person?

  Mr Farmer: I am sorry, I may have misled you there. When one has disputes between medical practitioners about a diagnosis, it is quite often because the person could fit into one or more diagnostic categories or straddle several or that there is no widely accepted criteria to apply. That can occur within a mental health diagnosis, but it can also occur within a—

  Q585  Chairman: If a doctor finds it difficult, would not equally an employer or a provider of goods and services also find it difficult?

  Mr Farmer: They do not make the diagnoses. I think most lay people would observe the disability or the difficulty in functioning and that is what any of us would do. We do not label ourselves as having a diagnosis, but we talk about what we cannot do, what the problem is, what the difficulty in functioning is.

  Q586  Lord Rix: Who is actually responsible in the end for making the diagnosis for the DDA to come into effect?

  Ms Daw: In the case of mental health cases?

  Q587  Lord Rix: Yes. In other words, to be clinically well recognised.

  Ms Daw: In most cases that succeed, there will be not only a GP who has made a diagnosis but also quite likely a specialist or psychiatrist generally as well. The problem can be of course the first time somebody encounters this illness. If they have had the illness over a period of years, then the diagnosis is probably clearer and more settled. It is when it happens for the first time that it takes some time perhaps to diagnose and that is exacerbated by the difficulty often in getting a psychiatrist to see the person, but it is a medical diagnosis.

  Q588  Baroness Wilkins: Perhaps I should declare an interest in that I worked with Mind in the 1970s under the late Tony Smyth and sadly he died at the weekend. We are coming on to day-to-day activities. You make various recommendations for expanding them. What normal day-to-day activities does the DDA definition currently miss out and what type of impairments does this affect?

  Ms Daw: I guess that, in a way, we have started from the other way round in that we have been very aware of the fact that there is an understandable political reason not to wish to expand the definition and, from the work that I was involved with in relation to the taskforce, I am only too aware of the importance of us locating where the problems lie and only wishing to address those problems. So, we have started really by looking at the volumes of case law and the numbers of reports, all of which have pointed to this particular problem. So, in a sense, the suggestions that we are making or the recommendations that we are making to change the day-to-day activities come from where we see those problems lying. So, we are not experts, if you like, if that is what you are asking, on how that might affect others but we are certainly aware that, perhaps with the exception of people with arm and limb problems and perhaps in respect of autism, we do not see that there is a major problem with normal day-to-day activities in other areas. Do you want me to continue to talk about why we have come up with the ones we have?

  Q589  Baroness Wilkins: That would be helpful.

  Ms Daw: As we have said, the definition concentrates on physical impairments and on the mental impairment in relation to learning disabilities, which is a quite separate and distinct situation from that of mental ill health. It is the problem of an inability to concentrate that is the key thing, the only way into the definition really for people with mental ill health, and the cases show again and again how difficult it is to come within that. I would just like to give one example because I think it shows very clearly the extent of the issues. This is the case of Hancock which concerned a very experienced teacher, school governor and county councillor. He got severe depression; he was off work for over 12 works; he could not see people; he could not go out; he got terrific anxiety in relation to involvement with any school children; and he had low motivation. However, his notes said that he was cognitively intact. So, the employment tribunal found him disabled despite that. The employment appeal tribunal, looking at that he was cognitively intact, said that he clearly was able to concentrate, there was not enough evidence that he could not concentrate. The man was clearly severely disabled over that period of time, but he could concentrate. That was probably his strong point! The case then had to go back again to an employment tribunal to see if they could work their way around the medical notes, which were extensive, to bring this man within the definition. Our view is that that is a terrific waste of everybody's time, it is stressful, it is costly and it is unnecessary because here was an example of a tribunal that saw that this man's situation was clearly that of a disabled person but he could not come within the definition because he could concentrate. There are numbers and numbers of cases of that kind. Perhaps I could just hand over now to Gerald who is going to talk more about this issue.

  Mr Jones: I am a user of mental health services. I have been diagnosed as suffering from clinical depression and I have some personality disorders associated with my childhood. I live on my own which makes life extremely difficult with a mental health problem. There are times when I become so ill that I simply cannot care for myself. I cannot even get up out of bed for several days at a time, which is quite a contrast to how I can be the rest of the time. At those times, I cannot interact with people, I find it difficult to keep threads of a conversation, I cannot watch television programmes from start to finish and I certainly could not write a competent letter. I have to take particular care of myself all the time. For instance, I have to keep certain food stocks in my freezer and also in my cupboard in the form of dried and tinned foods. I always keep dried milk in case I run out when my next door neighbour would go and get milk for me. That is the sort of thing I have to do because, when you live alone and you have an illness which affects you to such an extent, the only other alternative is inpatient treatment, in which case it would be the Brandon Mental Health unit at Leicester General Hospital. I would just like to try and reinforce to you folks that it is a labile illness. It does not affect you to severe extents 24 hours a day but, at the worst time, you simply cannot function at all and, at other times, you are severely impacted. Now, if I had to satisfy a test of, can you concentrate? I can concentrate today quite well. I got here okay. Other times, I find it very difficult. As you know, I have been to the House of Lords. I did the very first EAT submissions myself to the Honourable Mr Justice Charles. One of the reasonable adjustments, as I was suffering from panic attacks, was to go on the train at a later time because I simply could not go in the rush hour. That is the kind of effect that this illness has on me.

  Ms Daw: So, part of what we are trying to encapsulate here is that, particularly in the case of depression, it can be the ability to care for oneself that is particularly important but, when we get to issues, for instance, relating to schizophrenia or to eating disorders, again these are severely disabling and potentially life-ending situations, yet the ability to concentrate is not necessarily the main thing that is affected. For instance, it is particularly a person's perception of what we are calling reality which is actually a crib from the Australian legislation which has that term in it to cover precisely this situation where somebody has delusional times and it is that which is the problem, not their ability to concentrate. I think in our written evidence we give you examples of cases with anorexia nervosa and schizophrenia, so we perhaps can just refer you to that.

  Q590  Lord Swinfen: The Committee, as you have probably been aware, has received a wide range of suggested additions to the list of normal day-to-day activities. Is there any simple way you can see to decide on which ones to add?

  Ms Daw: I guess really there probably is not a simple way to answer that, but I can only reiterate that we are not approaching this de novo, if you like, we are not approaching this as if we have a clean slate. What we are concerned about is a very urgent problem that the cases show people are not receiving redress for their discrimination and therefore we have only focused on the issues that matter most to us and we are sort of aware of the background in the Task Force in which it was felt that it was only possible to go where there was a real problem, as for instance with the others that are recommended like cancer and HIV. So, I am afraid that I do not know that we have a good answer for you on that.

  Q591  Lord Swinfen: That is fair enough. At present, if the activity is not on the list in Schedule 1, it is not included.

  Ms Daw: Yes.

  Q592  Lord Swinfen: Do you think it would be wise to change the legislation to show that those on that list are purely examples?

  Ms Daw: I think there is a lot to be said for that as a potential way forward. My own view on that however is that of course that is the American approach, the American with Disabilities Act approach, and that is why people with mental health problems fare a lot better under that legislation and others as well and work is also included there. My own view however is somewhat similar to that of those countries that have not taken that approach, which is it is better to go for, if you are going to look at things dramatically/differently, the Australian, Irish and many other states' definition of discrimination. So, I personally would not recommend that if we were to have a big change, a big fresh look at it. What we want to do is to solve an immediate problem.

  Q593  Lord Swinfen: I do not know that definition immediately; are you able to tell us what it is?

  Ms Daw: It is quite long.

  Q594  Lord Swinfen: Perhaps you could send it to us.

  Ms Daw: Yes.

  Q595  Chairman: It would be helpful if you could write to us with all those definitions.

  Ms Daw: Absolutely, we can do that.

  Q596  Lord Rix: My first clash with Tony Smythe was when I was Secretary General of Mencap and they were sending out Christmas cards from Mind which were mentioning people with a mental handicap which confused matters further. However, we did sort it out after that. I have three questions. Are you satisfied at the moment with the present definition of mental impairment? Does it include learning disability or does it not include learning disability? Of course, this question also applies to the Mental Health Act, the putative Mental Health Act, it applies to the putative Mental Incapacity Act and so on. Do you think the definitions are clear enough in legislators' minds? That is question number one. Number two is that your evidence mentions the specific stigma which is associated with people who suffer from depression but how does this stigma manifest itself? Number three, how do you justify selecting only depression to be separately treated in terms of the length of time a person is affected by disability? Why have you chosen six months?

  Ms Daw: If I could quickly answer the first one about impairment. I think, Lord Rix, you know much more about the whole issues around mental impairment than I do but certainly as far as the DDA is concerned, I feel fairly confident that learning disabilities are very well covered by both the legislation and indeed the guidance in that respect. As far as your second question is concerned—

  Mr Smith: I think we referred to the stigma association with people who suffered from mental health problems rather than specifically depression and the main way that we want to respond to that is that people avoid seeking help—my area of expertise around employment—for the same reason people avoid employment because of the attitudes that they almost inevitably encounter. They also avoid seeking help and those two things do go together. Some statistics: only 24 per cent of people with mental health problems in England are in employment. Of the other 76 per cent, obviously some will not be able to work and some will not want to be in paid employment but we know that many of those people do want to be in employment and there is a substantial body of evidence to suggest that. An example from the early 1990s is a survey carried out by Outset among day service users and similar research in Nottingham revealed that 47 per cent of users wanted help in gaining employment. I think Gerald was going to give an example from recruitment agencies.

  Mr Jones: I had specific and very difficult problems getting back into employment following a breakdown I had some years ago and being treated for mental health problems. I will give you a couple of examples. I once applied for a job in IT, which is the skill set that I have in computer networking, with the Alliance and Leicester Building Society through a recruitment agency. The recruitment agency did not even put me forward for an interview but, having worked out that it was a bank based just south of Leicester, I actually contacted their IT department directly and spoke to one of their IT managers who jumped at the chance and I was there the next day for an interview. I did not get the job and I did not get it on merit and I am happy with that. Particular recruitment agencies do not want to put you forward. The simple fact of the matter is—and I have used this example before—it is a little like going into Sainsbury, Safeways or Tesco. The apples and the oranges in there look absolutely pristine these days, there is never a blemish on the surface, and that is the kind of product that they want to put forward to their client companies and they seem to decide that if you have a mental health problem or any history of it, they will not put you forward. I will give you another example. I put my CV through with a Castle Donington based agency. I was in the area, I was near the airport and I popped in to see them. This guy actually said to my face, "We don't employ psychos." Can you imagine what that does? I was recovering from a very difficult time in my life, "We don't employ psychos." I am not a psycho, I am just a person who has some health problems, that is all, and I am not ashamed of it either. I will give you a final example. I applied for a position for which I was very, very well qualified with the third largest drug company in the world that made over £3 billion profit. I applied through a computer recruitment agency and I had to explain to them why I had not been in work for some time. I had to tell them the truth, that I had been treated for depression. They did not even give me an interview. I took them to a tribunal. They spent tens-of-thousands-of-pounds defending it. They had a team of three: an in-house solicitor, an in-house barrister and an external barrister from Blackstone's Chambers. I won! I won because I was right. I won because it was unjust. The tribunal did not say, "You would have got the job", they said, "There were two very well qualified people who would have got that job and you were a third well qualified person." The difference was that I, as a disabled person, having suffered the stigma of mental health illness, did not even get put forward for an interview with the company. The other two did. That is unjust. It is very, very unjust. It is stigma. The physical difficulties I carry amongst everybody in society is that I carry "stigma" written across my face. I have been ill, that is all.

  Q597  Lord Rix: We have not had an answer to the question about six months yet.

  Ms Daw: We chose depression as opposed to choosing anything wider than depression because there are many, many case examples and I will not go into them but there are many where the person is clearly disabled but the case is lost because the depression has not lasted for 12 months. One recent example concerned a man where the tribunal actually were trying to work out if they could tot up the 12 months because, a classic situation, this man had had a depression, again had been in perfectly satisfactory employment for many years, went through a period of depression, was off work sick and was unable to concentrate, etc, etc. He satisfied every aspect of the definition except the fact that, within about five months, he started to recover and that is normally the case with depression. More than 50 per cent of cases of depression do begin to pick up within that period of time. So, by about six months, he was keen to get back to work and, by about nine months, he was probably ready to be back to work—he was still on medication—but he had been dismissed because he had depression. The reason why we have chosen depression only is because that is where the problem lies and because the taskforce looked at the short-term conditions which attracted discrimination and that included cancer, HIV and, in our view, depression, and indeed the taskforce found that as well.

  Mr Farmer: If I could perhaps address the six months issue. Whatever time period you choose, it is an arbitrary time period but it is not random, I think that is the first point. The rationale we thought for this was firstly about half of severe depressive episodes engendering suffering and loss of function will go on for about six months and, after that period, the ones that do go on beyond that tend to be chronic, i.e. 12 months or beyond that period. Of course, these people who have episodes lasting that time do have significant impairment and they carry stigma and we wanted to emphasise really that that is the group of people we are talking about with significant impairments. The other thing it does do is that it reduces the likelihood, if you were to go shorter than that and of course some episodes still can be significant and be shorter, but it would overcome the possibility that you could mistake those for shorter-lived, stress-related reactions that may not carry that degree of impairment and certainly may not carry that degree of chronicity at any one point. I suppose the other matter is that of course people may well have repeated episodes of these over periods of time. It is sometimes difficult to predict the periodicity of that or even if they will have but, if you are having these shorter-lived depressive episodes, each one carries quite a degree of problem for people and of course those problems can be made multiple as episodes are repeated.

  Q598  Chairman: Three of us were on the joint committee that looked at the Draft Mental Incapacity Bill and received evidence of course from the Royal College and from Mind and of course there we did deal with the question of what was called a fluctuating capacity where people moved in and out of capacity. It would be interesting from our point of view just to look at the work we did on that to see if it does read across into this bill.

  Mr Farmer: Yes.

  Q599  Tom Levitt: A couple of questions about extending the definition of disability in respect of mental health problems. In the evidence given by Mind, you have said that an expanded definition will inevitably bring more people within the scope of the Act. Are you saying that because it would bring in more people with mental health problems or more people suffering discrimination or do you regard those two groups as being one and the same?

  Ms Daw: I am sorry, could you repeat the question.


 
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